by Anthony W. Accurso
An effort by the Electronic Frontier Foundation (“EFF”) to track police use of surveillance technologies is butting up against the decentralized nature of our law enforcement networks in that open-records requests to different agencies for the same information result in wildly variable information — if anything is produced at all.
Nearly all law enforcement agencies are subject to some kind of open records law, from the federal Freedom of Information Act to New York’s Freedom of Information Law. Yet because these laws vary by jurisdiction, each law has its own exemptions, and each agency approaches these requirements and exemptions in different ways.
Watchdog groups like the EFF use these laws to obtain information from these agencies for the purpose of informing the public about privacy-invading tools in use by the police. Collecting such information from its own records requests and those of other groups, the EFF publishes an “Atlas of Surveillance,” a tool that citizens can use to determine what types of government surveillance may be in use where they live or travel.
Working with the Reynolds School of Journalism at the University of Nevada, Reno in the spring of 2022, EFF staff co-led a class on public records laws. Students filed their own records requests to various agencies around the country for information that would help update the Atlas of Surveillance. Specifically, the students submitted requests to agencies that were previously known to have used cell-site simulators (“CSS” a.k.a. “Stingrays”), and they only requested “very basic information about the company from which the tools were purchased and for how much — nothing that would jeopardize an investigation.”
The range of responses was indicative of the attitudes each agency has toward transparency and community accountability. Erie County, New York, and the Philadelphia Police Department failed to respond to the requests after several months despite responses being statutorily mandatory within a short window of time after receipt of such a request.
Contrast this with the San Bernardino County Sheriff’s Office, which supplied records showing a CSS was purchased from Tactical Support Equipment of North Carolina for $635,000.
Anne Arundel County in Virginia provided a similar invoice from a company named KeyW Corporation for more than half a million dollars, “but it chose to redact the names and descriptions of the actual items purchased, citing the investigative techniques exemption.”
Both Chesterfield, Virginia, and the Attorney General of Louisiana responded by saying that there were records that matched the request but refused to provide them on the grounds that “these records are considered investigative techniques.”
The willingness of a California agency to be more forthcoming likely has to do with that state’s laws requiring agencies to publicly disclose all policies and training manuals, issue regular reports on the use of surveillance and military-grade equipment, and post policies governing the use of CSS. While this enables California communities to hold their police accountable, the lack of national standards, or how they are applied, leaves many communities in the dark about how the police are prying into their private lives.
As a digital subscriber to Criminal Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login